1. The author of the
communication (initial submission dated 15 September 1987 and subsequent
correspondence) is Paul Kelly, a Jamaican citizen awaiting execution at St.
Catherine District Prison, Jamaica. He claims to be the victim of a
violation by Jamaica of articles 6, paragraph 2; 7; 9, paragraphs 3 and 4;
10; and 14, paragraphs 1 and 3 (a)-(e)and (g), of the International Covenant
on Civil and Political Rights. He is represented by counsel.

FACTS AS SUBMITTED BY THE AUTHOR

2.1 The author was
arrested and taken into custody on 20 August 1981. He was detained until 15
September 1981 without formal charges being brought against him. Following a
statement to the police given on 15 September 1981, he was charged with
having murdered Owen Jamieson on 2 July 1981. He was tried with a
co-defendant, Trevor Collins, in the Westmoreland Circuit Court between 9
and 15 February 1983. He and Mr. Collins were found guilty of murder and
sentenced to death. On 23 February 1983, the author appealed his conviction:
on 28 April 1986, the Jamaican Court of Appeal dismissed his appeal without
producing a reasoned judgement. On appeal, author's counsel merely stated
that he found no merit in arguing the appeal. Because of the absence of a
reasoned judgement of the Court of Appeal, the author has refrained from
further petitioning the Judicial Committee of the Privy Council for special
leave to appeal.

2.2 The evidence relied on
during the trial was that on 1 July 1981 the author and Mr. Collins had sold
a cow to Basil Miller and had given him a receipt for the sale. According to
the prosecution, the cow had been stolen from Mr. Jamieson, who had visited
Mr. Miller's home on the afternoon of 1 July and had identified the cow as
his property. The accused had then purportedly killed Mr. Jamieson in the
belief that he had obtained the receipt from Mr. Miller implicating them in
the theft of the cow.

2.3 During the trial, the
prosecution adduced certain evidence against the author and his
co-defendant: (a) blood-stained clothing that was found in a latrine at the
house where the accused lived; (b) the presence of a motive; and (c)the oral
evidence tendered by the sister of the author and the brother of Trevor
Collins. In particular, the testimony of the author's sister was important
as to the identification of the clothes found in the latrine. According to
the prosecution, the author and Mr. Collins had fled the district after the
murder. Mr. Collins brother testified that the accused had borrowed a
suitcase from him in the early hours of the morning following the murder.

2.4 The author challenged
the prosecution's contention that his statement of 15 September 1981 had
been a voluntary one. In an unsworn statement from the dock, he claimed to
have been beaten by the police, who had tried to force him to confess to the
crime. He affirms that the police tried to have him sign a "blanko"
confession, and that he withstood the beatings and refused to sign any
papers presented to him. He further maintains that he never made a statement
to the police and that he knows nothing about the circumstances of Mr.
Jamieson's death.

COMPLAINT

3.1 The author alleges a
violation of articles 7 and 14, paragraph 3 (g), of the Covenant on the
ground that he was threatened and beaten by the police, who tried to make
him give and sign a confession. Although the police sought to dismiss his
version during the trial, the author contends that several factors support
his claim: his voluntary confession" was not obtained until nearly four
weeks after his arrest: no independent witness was present at the time when
he purportedly confessed and signed his statement; and there were numerous
inconsistencies in the prosecution's evidence relating to the manner in
which his statement was obtained.

3.2 The author further
notes that 26 days passed between his arrest (20 August 1981)and the filing
of formal charges against him (15 September 1981). During this time, he
claims, he was not allowed to contact his family nor to consult with a
lawyer, in spite of his requests to meet with one. After he was charged,
another week elapsed before he was brought before a judge. During this
period, his detention was under the sole responsibility of the police, and
he was unable to challenge it. This situation, he contends, reveals
violations of article 9, paragraphs 3 and 4, in that he was not "brought
promptly before a judge or other officer authorized by law to exercise
judicial power", and because he was denied the means of challenging the
lawfulness of his detention during the first five weeks following his
arrest.

3.3 According to the
author, the State party violated article 14, paragraph 3 (a), because he was
not informed promptly and in detail of the nature of the charges against
him. Upon his arrest, he was held for several days at the central lock-up at
Kingston, pending "collection" by the Westmoreland police, and merely told
that he was wanted in connection with a murder investigation. Further
details were not forthcoming even after his transfer to Westmoreland. It was
only on 15 September 1981 that he was informed that he was charged with the
murder of Owen Jamieson.

3.4 The author submits
that article 14, paragraph 3 (b), was violated in his case, since he was
denied adequate time and facilities for the preparation of his defence, had
no or little opportunity to communicate with counsel representing him at
trial and on appeal, both before and during trial and appeal, and because he
was unable to defend himself through legal assistance of his own choosing.
In this context, he notes that he experienced considerable difficulty in
obtaining legal representation. Counsel assigned to him during the trial did
not meet with him until the opening day of the trial: moreover, this meeting
lasted a mere 15 minutes, during which it was virtually impossible for
counsel to Prepare the author's defence in any meaningful way. During the
trial, he could not consult with the lawyers for more than a total of seven
minutes, which means that preparation of the defence prior to and during the
trial was restricted to 22 minutes. He points out that the lack of time for
the preparation of the trial was extremely prejudicial to him, in that his
lawyer could not prepare proper submissions on his behalf in relation to the
admissibility of his "confession statement", or prepare properly for the
cross-examination of witnesses. As to the hearing of the appeal, the author
contends that he never met with, or even instructed, his counsel, and that
he was not present during the hearing of the appeal.

3.5 The author also
alleges that article 14, paragraph 3 (d), was violated. In this connection,
he notes that, as he is poor, he had to rely on legal aid lawyers for the
judicial proceedings against him. While he concedes that this situation does
not in itself reveal a breach of article 14, paragraph 3 (d), he submits
that the inadequacy of the Jamaican legal aid system, which resulted in
substantial delays in securing suitable legal representation, does amount to
a breach of this provision. He further notes that as he did not have an
opportunity to discuss his case with the lawyers assigned to his appeal, he
could not possibly know that this lawyer intended to withdraw the appeal and
thus could not object to his intentions. He adds that had he been apprised
of the situation, he would have sought other counsel.

3.6 The author contends
that he has been the victim of a violation of article 14, paragraph 3 (c),
in that he was not tried without undue delay. Thus, almost 18 months elapsed
between his arrest and the start of the trial. During the whole period, he
was in police custody. As a result, he was prevented from carrying out his
own investigations, which might have assisted him in preparing his defence,
given that court-appointed legal assistance was not immediately forthcoming.

3.7 In the author's
opinion, he was denied a fair hearing by an independent and impartial
tribunal, in violation of article 14, paragraph 1, of the Covenant. Firstly,
he contends that he was poorly represented by the two legal aid lawyers who
were assigned to him for the trial and the appeal. His representative during
the trial, for instance, allegedly never was in a position to present his
defence constructively; his cross-examination of prosecution witnesses was
superficial, and he did not call witnesses on the author's behalf, although
the author notes that his aunt, Mrs. Black, could have corroborated his
alibi. Furthermore, counsel did not call for the testimony of a woman -the
owner of the house where the accused had lived -who had given the police
information leading to the author's arrest. This, he submits, constitutes a
violation of article 14, paragraph 3 (e). Secondly, the author alleges bias
and prejudice on the part of the trial judge. The latter allegedly admitted
hearsay evidence presented by Basil Miller and several other witnesses. When
author's counsel opened his defence statement, the judge reaffirmed his
desire to dispose of the case expeditiously, while he refrained from similar
attempts to curtail the presentation of the prosecution's case. He allegedly
made disparaging remarks related to the case for the defence, thus
undermining the presumption of innocence. Finally, the judge's conduct of
the voir dire in connection with the determination of the voluntary
character of the author's confession is said to have been "inherently
unfair".

3.8 Finally, the author
affirms that he is the victim of a violation of article 10 of the Covenant,
since the treatment he is subjected to on death row is incompatible with the
respect for the inherent dignity of the human person. In this context, 'he
encloses a copy of a report about the conditions of detention on death row
at St. Catherine Prison, prepared by a United States non-governmental
organization, which describes the deplorable living conditions prevailing on
death row. More particularly, the author claims that these conditions put
his health at considerable risk, adding that he receives insufficient food,
of very low nutritional value, that he has no access whatsoever to
recreational or sporting facilities and that he is locked in his cell
virtually 24 hours a day. It is further submitted that the prison
authorities do not provide for even basic hygienic facilities, adequate
diet, medical or dental care, or any type of educational services. Taken
together, these conditions are said to constitute a breach of article 10 of
the Covenant. The author refers to the Committee's jurisprudence in this
regard.

3.9 In respect of the
requirement of exhaustion of domestic remedies, the author maintains that
although he has not petitioned the Judicial Committee of the Privy Council,
he should be deemed to have complied with the requirements of article 5,
paragraph 2 (b), of the Optional Protocol. He notes that pursuant to rule 4
of the Privy Council rules, a written judgement of the Court of Appeal is
required if the Judicial Committee is to entertain an appeal.

3.10 The author further
points out that he was unaware of the existence of the Note of Oral
Judgement until almost three years after the dismissal of his appeal, and
counsel adds that the trial transcript obtained in October 1989 is
incomplete in material respects, including the summing-up of the judge,
which further hampers efforts to prepare properly an appeal to the Privy
Council. Subsidiarily, he argues that as almost eight years have already
elapsed since his conviction, the pursuit of domestic remedies has been
unreasonably prolonged. Finally, he argues that a constitutional motion in
the Supreme (Constitutional)Court of Jamaica would inevitably fail, in the
light of the precedent set by the Judicial Committee's decisions in DPP v.
Nasralla 2/and Riley et al. v. Attorney General of Jamaica, where it was
held that the Jamaican Constitution was intended to prevent the enactment of
unjust laws and not merely unjust treatment under the law.

STATE PARTY'S OBSERVATIONS

4.1 The State party
contends that the communication is inadmissible because of the author's
failure to exhaust domestic remedies, since he retains the right, under
section 110 of the Jamaican Constitution, to petition the Judicial Committee
of the Privy Council for special leave to appeal. In this context, it points
out that the rules of procedure of the Judicial Committee do not make a
written judgement of the Court of Appeal a prerequisite for a petition for
leave to appeal. While rule 4 provides that any petitioner for special leave
to appeal must submit the judgement from which leave to appeal is sought,
Rule 1 defines "judgement" as "decree order, sentence or decision of any
court, judge or judicial officer". Thus, the State party argues, an order or
a decision of the Court of Appeal, as distinct from a reasoned judgement, is
a sufficient basis for a petition for special leave to appeal to the
Judicial Committee. It adds that the Privy Council has heard petitions on
the basis of the order or decision of the Court of Appeal dismissing the
appeal.

4.2 With respect to the
substance of the author's allegations, the State party affirms that the
facts as presented by the author "seek to raise issues of facts and evidence
in the case which the Committee does not have the competence to evaluate".
The State party refers to the Committee's decisions in communications
290/1988 and 369/1989, in which it had been held that "while article 14 . .
. guarantees the right to a fair trial, it is for the appellate courts of
States parties to the Covenant to evaluate facts and evidence in a
particular case".

ISSUES AND PROCEEDINGS BEFORE
THE COMMITTEE

5.1 On the basis of the
information before it, the Human Rights Committee concluded that the
conditions for declaring the communication admissible had been met,
including the requirement of exhaustion of domestic remedies. In this
respect, the Committee considered that a written judgement of the Court of
Appeal of Jamaica was a prerequisite for a petition for special leave to
appeal to the Judicial Committee of the Privy Council. It observed that in
the circumstances, author's counsel was entitled to assume that any petition
for special leave to appeal would inevitably fail because of the lack of a
reasoned judgement from the Court of Appeal: it further recalled that
domestic remedies need not be exhausted if they objectively have no prospect
of success.

5.2 On 17 October 1989,
the Human Rights Committee declared the communication admissible.

5.3 The Committee has
noted the State party's submissions of 8 May and 4 September 1990, made
after the, decision on admissibility, in which it reaffirms its position
that the communication is inadmissible on the ground of non-exhaustion of
domestic remedies. The Committee takes the opportunity to expand on its
admissibility findings, in the light of the State party's further
observations. The State party has argued that the Judicial Committee of the
Privy Council may hear a petition for special leave to appeal even in the
absence of a written judgement of the Court of Appeal: it bases itself on
its interpretation of rule 4 juncto rule 1 of the Privy Council's Rules of
Procedure. It is true that the Privy Council has heard several petitions
concerning Jamaica in the absence of a reasoned judgement of the Court of
Appeal, but, on the basis of the information available to the Committee, all
of these petitions were dismissed because of the absence of a reasoned
judgement of the Court of Appeal. There is therefore no reason to revise the
Committee's decision on admissibility of 17 October 1989.

5.4 As to the substance of
the author's allegations of violations of the Covenant, the Committee notes
with concern that several requests for clarifications notwithstanding, the
State party has confined itself to the observation that the facts as
submitted seek to raise issues of facts and evidence that the Committee is
not competent to evaluate; it has not addressed the author's specific
allegations under articles 7, 9, 10 and 14, paragraph 3, of the Covenant.
Article 4, paragraph 2, of the Optional Protocol enjoins a State party to
investigate in good faith all the allegations of violations of the Covenant
made against it and its judicial authorities, and to make available to the
Committee all the information at its disposal. The summary dismissal of the
author's allegations, in general terms, does not meet the requirements of
article 4, paragraph 2. In the circumstances, due weight must be given to
the author's allegations, to the extent that they have been sufficiently
substantiated.

5.5 As to the claim under
articles 7 and 14, paragraph 3 (g), of the Covenant, the Committee notes
that the wording of article 14, paragraph 3 (g)-i. e., that no one shall "be
compelled to testify against himself or to confess guilt" -must be
understood in terms Of the absence of any direct or indirect physical or
psychological pressure from the investigating authorities on the accused,
with a view to obtaining a confession of guilt. A fortiori, it is
unacceptable to treat an accused person in a manner contrary to article 7 of
the Covenant in order to extract a confession. In the present case, the
author's claim has not been contested by the State party. It is, however,
the Committee's duty to ascertain whether the author has sufficiently
substantiated his allegation, notwithstanding the State party's failure to
address it. After careful consideration of this material, and taking into
account that the author's contention was successfully challenged by the
prosecution in court, the Committee is unable to conclude that the
investigating officers forced the author to confess his guilt, in violation
of articles 7 and 14, paragraph 3 (g).

5.6 In respect of the
allegations pertaining to article 9, paragraphs 3 and 4, the State party has
not contested that the author was detained for some five weeks before he was
brought before a judge or judicial officer entitled to decide on the
lawfulness of his detention. The delay of over one month violates the
requirement, in article 9, paragraph 3, that anyone arrested on a criminal
charge shall be brought "promptly" before a judge or other officer
authorized by law to exercise judicial power. Committee considers it to be
an aggravating circumstance that, throughout this period, the author was
denied access to legal representation and any contact with his family. As a
result, his right under article 9, paragraph 4, was also violated, since he
was not in due time afforded the opportunity to obtain, on his own
initiative, a decision by the court on the lawfulness of his detention.

5.7 In as much as the
author's claim under article 10 is concerned, the Committee reaffirms that
the obligation to treat individuals with respect for the inherent dignity of
the human person encompasses the provision of, inter alia, adequate medical
care during detention. &/The provision of basic sanitary facilities to
detained persons equally falls within the ambit of article 10. The
.Committee further considers that the provision of inadequate food to
detained individuals and the total absence of recreational facilities does
not, save under exceptional circumstances, meet the requirements of article
10. In the author's case, the State party has not refuted the author's
allegation that he has contracted health problems as a result of a lack of
basic medical care, and that he is only allowed out of his cell for 30
minutes each day. As a result, his right under article 10, paragraph 1, of
the Covenant has been violated.

5.8 Article 14, paragraph
3 (a), requires that any individual under criminal charges shall be informed
promptly and in detail of the nature and the charges against him. The
requirement of prompt information, however, only applies once the individual
has been formally charged with a criminal offence. It does not apply to
those remanded in custody pending the result of police investigations: the
latter situation is covered by article 9, paragraph 2, of the Covenant. In
the present case, the State party has not denied that the author was not
apprised in any detail of the reasons for his arrest for several weeks
following his apprehension and that he was not informed about the facts of
the crime in connection with which he was detained or about the identity of
the victim. The Committee concludes that the requirements of article 9,
paragraph 2, were not met.

5.9 The right of an
accused person to have adequate time and facilities for the preparation of
his defence is an important element of the guarantee of a fair trial and an
important aspect of the principle of equality of arms. In cases in which
capital sentence may be pronounced on the accused, it is axiomatic that
sufficient time must be granted to the accused and his counsel to prepare
the defence for the trial. The determination of what constitutes "adequate
time" requires an assessment of the individual circumstances of each case.
The author also contends that he was unable to obtain the attendance of
witnesses. It is to be noted, however, that the material before the
Committee does not disclose whether either counsel or author complained to
the trial judge that the time or facilities were inadequate. Furthermore,
there is no indication that counsel decided not to call witnesses in the
exercise of his professional judgement, or that, if a request to call
witnesses was made, the trial judge disallowed it. The Committee therefore
finds no violation of article 14, paragraph 3 (b)and (e).

5.10 As to the issue of the
author's representation, in particular before the Court of Appeal, the
Committee recalls that it is axiomatic that legal assistance should be made
available to a convicted prisoner under sentence of death. This applies to
all the stages of the judicial proceedings. In the author's case, it is
clear that legal assistance was assigned to him for the appeal. What is at
issue is whether his counsel had a right to abandon the appeal without prior
consultation with the author. The author's application for leave to appeal
to the Court of Appeal, dated 23 February 1983, indicates that he did not
wish to be present during the hearing of the appeal, but that he wished
legal aid to be assigned for this purpose. Subsequently, and without
previously consulting with the author, counsel opined that there was no
merit in the appeal, thus effectively leaving the author without legal
representation. The Committee is of the opinion that while article 14,
paragraph 3 (d), does not entitle the accused to choose counsel provided to
him free of charge, measures must be taken to ensure that counsel, once
assigned, provides effective representation in the interests of justice.
This includes consulting with, and informing, the accused if he intends to
withdraw an appeal or to argue before the appeals court that the appeal has
no merit.

5.11 With respect to the
claim of "undue delay" in the proceedings against the author, two issues
arise. The author contends that his right, under article 14, paragraph 3
(c), to be tried without "undue delay" was violated because almost 18 months
elapsed between his arrest and the opening of the trial. While the Committee
reaffirms, as it did in its general comment on article 14, that all stages
of the judicial proceedings should take place without undue delay, it cannot
conclude that a lapse of a year and a half between the arrest and the start
of the trial constituted "undue delay", as there is no suggestion that
pre-trial investigations could have been concluded earlier, or that the
author complained in this respect to the authorities.

5.12 However, because of the
absence of a written judgement of the Court of Appeal, the author has, for
almost five years since the dismissal of his appeal in April 1986, been
unable effectively to petition the Judicial Committee of the Privy Council,
as shown in paragraph 5.3 above. This, in the Committee's opinion, entails a
violation of article 14, paragraph 3 (c), and article 14, paragraph 5. The
Committee reaffirms that in all cases, and in particular in capital cases,
the accused is entitled to trial and appeal proceedings without undue delay,
whatever the outcome of these judicial proceedings may turn out to be.

5.13 Finally, inasmuch as
the author's claim of judicial bias is concerned, the Committee reiterates
that it is generally for the appellate courts of States parties to the
Covenant to evaluate the facts and evidence in a particular case. It is not
in principle for the Committee to review specific instructions to the jury
by the judge in a trial by jury, unless it can be ascertained that the
instructions to the jury were clearly arbitrary or amounted to a denial of
justice, or that the judge manifestly violated his obligation of
impartiality. The Committee does not have sufficient evidence that the
author's trial suffered from such defects.

5.14 The Committee is of the
opinion that the imposition of a sentence of death upon the conclusion of a
trial in which the provisions of the Covenant have not been respected
constitutes, if no further appeal against the sentence is available, a
violation of article 6 of the Covenant. As the Committee noted in its
general comment 6 (16), the provision that a sentence of death may be
imposed only in accordance with the law and not contrary to the provisions
of the Covenant implies that "the procedural guarantees therein prescribed
must be observed, including the right to a fair hearing by an independent
tribunal, the presumption of innocence, the minimum guarantees for the
defence, and the right to review by a higher tribunal". In the present case,
while a petition to the Judicial Committee is in theory still available, it
would not be an available remedy within the meaning of article 5, paragraph
2 (b), of the Optional Protocol, for the reasons indicated in paragraph 5.3
above. Accordingly, it may be concluded that the final sentence of death was
passed without having met the requirements of article 14, and that as a
result the right protected by article 6 of the Covenant has been violated.

6. The Human Rights
Committee, acting under article 5, paragraph 4, of the Optional Protocol to
the International Covenant on Civil and Political Rights, is of the view
that the facts before the Committee disclose violations of articles 6, 9,
paragraphs 2 to 4, 10 and 14, paragraphs 3 (c)and (d)and 5 of the Covenant.

7. It is the view of the
Committee that, in capital punishment cases, States parties have an
imperative duty to observe rigorously all the guarantees for a fair trial
set out in article 14 of the Covenant. The Committee is of the view that Mr.
Paul Kelly, victim of a violation of article 14, paragraph 3 (c)and (d)and 5
of the Covenant, is entitled to a remedy entailing his release.

8. The Committee would
wish to receive information on any relevant measures taken by the State
party in respect of the Committee's views.